This Petition for Review from the March 22, 1996 Finding and Dismissal of the Commissioner acting for the Fifth District was heard December 13, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 22, 1996 Finding and Dismissal of the Commissioner acting for the Fifth District. She argues on appeal that the commissioner erred by dismissing her claim on the ground that she did not prove she was a dependent spouse under § 31-306 C.G.S. She also argues that he erred by failing to award certain benefits to the decedent’s estate. We affirm the trial commissioner’s decision.

The commissioner noted as a preface to his decision that the instant claim is based on occupational exposure to asbestos that Albert Krampetz (decedent) suffered prior to 1976, the year of his retirement. On April 7, 1976, an award by stipulation was approved by the Commissioner for the Fifth District. This stipulation was executed by Albert Krampetz as the claimant and by Charlotte Krampetz as his wife and prospective dependent. The respondents1 contend that this stipulation settled any claims for the decedent’s illness and death in 1982, including his wife’s claim.2

The commissioner found that the claimant was married to the decedent on May 25, 1935. She testified that she was still married to the decedent in 1982, when he died of malignant mesothelioma due to work-related asbestos exposure. However, she had worked and lived at Southbury Training School between 1969 and 1979. The trier found that she offered no evidence to establish that she and the decedent were living together or that she was receiving support from him at the time he became disabled in December 1981. In fact, a doctor’s note from that time reported that the decedent lived alone and that he was separated from his wife. The commissioner concluded that the two were not living together in December 1981, and that she was not receiving regular support from the decedent. Thus, she failed to prove that she was a dependent surviving spouse within the meaning of § 31-306 C.G.S. The claimant has appealed that decision.

The first item that we examine in considering this appeal is the 1976 stipulation. A stipulation in a workers’ compensation case is a compromise and release type of agreement similar to settlements in civil personal injury cases where the adverse party is released from further liability in exchange for a lump sum payment. Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 30-31 (1996). The stipulation here specified that during his employment with Uniroyal, Albert Krampetz injured his left arm, both shoulders, his hands, left knee, right ankle, suffered tendonitis, and sustained numerous scrapes, cuts, nicks, and injuries. He had been left with a high degree of permanent partial disability, and could no longer do his former job; as such, “he wants to settle all his claims and cases both known and unknown.” (Emphasis added).

Although the respondent contested that the claimant was owed any benefits beyond that which they had already paid, the parties reached a settlement for $3,800.00 as a “full, final and complete settlement, adjustment, accord and satisfaction of all claims which the aforesaid claimant might otherwise have against the respondents or either of them and to be made and accepted in lieu of all other compensation payments in accordance with the language of our Compensation Act.” It encompassed “all compensation including specific for said injury and [] all results upon the claimant, past, present and future and [] all claims for medical, surgical, hospital and incidental expenses to the end that the payment of such sum shall constitute a complete satisfaction of all claims due or to become due at any time in favor of anybody on account of the claimed injuries or on account of any condition in any way resulting out of the said injuries.” The parties agreed that the claimant understood the stipulation, knew that it dealt with any conditions “known or unknown, which exist as of the date hereof, 4” and that it was not entered into by duress, fraud, accident or mistake. It was signed by both Albert Krampetz and his wife, Charlotte Krampetz, the instant claimant.

The relevant language of this agreement is identical to language in Duni, supra, a case in which the plaintiff filed a claim for survivor’s benefits two months after her husband died. Our Supreme Court held that the stipulation barred the plaintiff’s claim for benefits because her rights as a surviving dependent flowed directly from her late husband’s work-related injury, and because to do otherwise would “unduly undermine the public interest in the prompt and comprehensive resolution of workers’ compensation claims.” Id., 25-27. The Court distinguished the result reached in Muldoon v. Homestead Insulation Co., 231 Conn. 469 (1994), because the second workers’ compensation claim in that case was based on additional exposure to asbestos that had occurred after the first claim was settled. The Duni court further ruled that the language in the stipulation was effective in extinguishing the plaintiff’s rights, as it was made in “complete satisfaction of all claims due or to become due at any time in favor of anybody on account of the claimed injuries or on account of any condition in any way resulting out of the said injuries.” Id., 31 (emphasis in original).

The situation here is only slightly different from that in Duni. Although the decedent was presumably unaware of his latent mesothelioma at the time of the stipulation, he had already sustained all of the work-related exposure that allegedly led to his development of that disease. The specific injuries listed in the stipulation probably had no relationship to the development of mesothelioma, as they were in the nature of sprains, scrapes, tendonitis, and injuries to the extremities. However, the claimant evinced an intent to settle any claims for conditions “known or unknown, which exist as of the date hereof.”

Language covering future and unknown claims is ordinarily construed to cover inchoate claims that exist at the time of the release but have not yet manifested themselves, as opposed to claims based upon occurrences which have their beginning after the instrument is executed. Muldoon, supra, 481-82. The alleged asbestos exposure that led to the claimant’s mesothelioma clearly falls within the category of an inchoate claim that existed at the time of the stipulation. The claimant and the decedent both signed that agreement, which made the release of such inchoate claims part of their bargain in exchange for a lump sum settlement. Part of the risk in making a settlement is the possibility that the rights one bargains away may turn out to be worth more money in the future. That is what happened here. Such an outcome is unfortunate, but is not in violation of our law. The effect of this agreement is to bar the decedent and the claimant from making any future claims based on claims that existed against Uniroyal as of the date of the settlement, which includes both parties’ claims in this case.

In the interest of thoroughness, we also note that the trial commissioner is the person charged with evaluating the credibility of the evidence offered by the parties. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). He was not persuaded here that the claimant had proven that she was a dependent of the decedent on the date he was injured. The claimant argues that one could infer from her testimony and the death certificate that she lived with the decedent prior to his death, but the commissioner did not draw that inference. In fact, she never directly stated in her testimony that she lived with the decedent and was supported by him at the time he became disabled. See February 1, 1990 Transcript. It was the claimant’s burden to prove that she was a surviving dependent of the decedent, and not the respondents’ burden to disprove that fact. Although the notation on the doctor’s report indicating that the decedent lived alone and was separated from his wife as of September 1991 may not be overwhelming evidence, it was something that the claimant should have made an effort to refute. This was not done, and the commissioner dismissed her claim.

The trial commissioner’s decision is affirmed for all of the reasons listed above.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 Several of the insurers listed as parties in this appeal claim to have no relationship to this case. They are Fireman’s Fund, Reliance, and Cigna. Additionally, counsel for Travelers’ adopted the brief of the respondent employer Uniroyal Inc. BACK TO TEXT

2 The commissioner also noted a related case, Krampetz v. Uniroyal Chemical, 11 Conn. Workers’ Comp. Rev. Op. 293, 1367 CRD-5-92-1 (Dec. 8, 1993), in which this board affirmed a trier’s decision that § 52-572r C.G.S. applied to the instant claim, and that the employer would have no right to an offset against the claimant’s recovery from a third party in a product liability action. BACK TO TEXT